D. Andrew Tait v. Pepsico Inc. D/B/A Pepsi Beverage Co., Dr Pepper Snapple Group, and John Peter Smith Hospital

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00290-CV
___________________________
D. ANDREW TAIT, Appellant
V.
PEPSICO INC. D/B/A PEPSI BEVERAGE CO., DR PEPPER SNAPPLE GROUP,
AND JOHN PETER SMITH HOSPITAL, Appellees
On Appeal from the 342nd District Court
Tarrant County, Texas
Trial Court No. 342-321204-20
Before Sudderth, C.J.; Kerr and Womack, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
Pro se Appellant D. Andrew Tait brought negligence claims against Pepsico
Inc. d/b/a Pepsi Beverage Co. (Pepsi), Dr Pepper Snapple Group (Dr Pepper), and
John Peter Smith Hospital (JPS1) after allegedly suffering an injury while drinking a
can of soda. The trial court later granted a plea to the jurisdiction filed by JPS, and it
granted summary judgment to Pepsi and Dr Pepper. On appeal, Tait brings—as best
as we can glean from his brief2—the following three issues: (1) that the trial court
abused its discretion by failing to appoint him a “Pro-bono attorney”; (2) that the trial
court “should have protected his Civil Rights when he was obviously mentally
floundering at hearings”; and (3) that the trial court abused its discretion by failing to
grant his motion for continuance filed two days before the hearing on Pepsi’s and
Dr Pepper’s respective motions for summary judgment. We will affirm.
II. BACKGROUND
On October 26, 2020, Tait filed his lawsuit, bringing negligence claims against
Pepsi, Dr Pepper, and JPS. Tait alleged that two years earlier, he was drinking a
1
Tarrant County Hospital District d/b/a JPS Health Network appeared in the
lawsuit and contended that it had been incorrectly named as “John Peter Smith
Hospital.” Because the proper name of this entity has no impact on our analysis, we
will simply refer to it as “JPS.”
2
Tait’s issues are not specifically enumerated in the “Issues Presented” section
of his brief.
2
“Crush Grape Soda” when a sharp foreign object in the can entered his throat and
temporarily lodged there. After swallowing the object, Tait purportedly experienced
“excruciating pain,” and that same day, he went to JPS seeking medical treatment.
Tait alleged that ever since that day, he has “suffered from and continues to suffer
from sleep deprivation due to ongoing throat pain.” Tait further contended that his
sleep deprivation has caused him to “develop[] other unsettling ailments.”
JPS answered Tait’s lawsuit and filed a plea to the jurisdiction based on
governmental immunity. The trial court later granted the plea to the jurisdiction,
dismissing Tait’s claims brought against JPS.3 Pepsi answered Tait’s lawsuit and filed
a traditional motion for summary judgment based on the applicable two-year statute
of limitations for negligence claims.4 See Tex. Civ. Prac. & Rem. Code Ann.
§ 16.003(a). Dr Pepper answered Tait’s lawsuit and filed a combined traditional
3
It does not appear that Tait is challenging the trial court’s grant of JPS’s plea to
the jurisdiction through this appeal. JPS’s counsel made a filing in this appeal
indicating that it would not be filing a brief unless we directed it to do so because
“[Tait] has not briefed any issue which concerns [JPS].”
4
In its motion for summary judgment, Pepsi argued that Tait did not exercise
due diligence in serving it with process, explaining that although Tait had filed his
lawsuit on October 26, 2020—exactly two years after he drank the subject soda—he
waited until May 12, 2021, to issue a citation for service of process and until May 27,
2021, to effectuate service. See Proulx v. Wells, 235 S.W.3d 213, 215 (Tex. 2007)
(holding that filing a suit within the limitations period does not stop the running of
the limitations period “unless the plaintiff exercises due diligence in the issuance and
service of citation”).
3
motion for summary judgment based on limitations5 and a no-evidence motion for
summary judgment. Pepsi’s and Dr Pepper’s respective motions for summary
judgment were set for a hearing on June 23, 2022.
Two days before the hearing, Tait filed a motion for continuance, explaining
that issues relating to his “mental fog, memory recall[,] and productivity” caused by
his sleep deprivation necessitated a continuance of “at least 4 to 6 week[s].” On
June 23, 2022—the day of the hearing on the respective motions for summary
judgment—Tait filed a “Motion to Stop Summary Judg[]ment(s),” in which he again
complained about purported mental problems brought on by his alleged “Severe
Sleep Deprivation” and in which he complained that he “should have been assigned a
Pro-Bono Attorney from the onset [of his case] due to his mental condition.” The
day of the hearing, the trial court signed orders granting Pepsi’s and Dr Pepper’s
respective motions for summary judgment, dismissing Tait’s claims brought against
them.6 Those summary judgments, together with the order granting JPS’s plea to the
jurisdiction, became a final judgment, and this appeal followed.
5
In its traditional motion for summary judgment, Dr Pepper also argued that
Tait did not exercise due diligence in serving it with process, explaining that Tait did
not serve it with process “until at least May 12, 2021,” despite filing his lawsuit on
October 26, 2020.
6
No reporter’s record was made of that hearing.
4
III. DISCUSSION
A. Tait’s First Issue
In what we construe as his first issue, Tait argues that the trial court abused its
discretion by failing to appoint him a “Pro-bono attorney.” To preserve a complaint
for appellate review, a party must present to the trial court a timely request, objection,
or motion that states the specific grounds for the desired ruling, if not apparent from
the request’s, objection’s, or motion’s context. Tex. R. App. P. 33.1(a)(1)(A). If a
party fails to do this, error is not preserved. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex.
1991) (op. on reh’g). Merely filing a motion is insufficient to show that the party
brought it to the trial court’s attention or requested a ruling. JD Shelton Enters. LLC v.
AGL Constructors, No. 05-18-00765-CV, 2019 WL 2498682, at *2 (Tex. App.—Dallas
June 17, 2019, no pet.) (mem. op.); Pedroza v. Tenet Healthcare Corp., 555 S.W.3d 608,
612 (Tex. App.—El Paso 2018, no pet.).
Here, the record reflects that Tait filed a “Final Plea by Plaintiff for Pro-Bono
Legal Representative/Lawyer Due to Diminished Cognitive Ability of Plaintiff as a
Direct Result of Sleep Deprivation” in which he requested that the court appoint him
counsel and that he also argued that he “should have been assigned a Pro-Bono
Attorney” in his “Motion to Stop Summary Judg[]ment(s).” However, there is
nothing in the record to indicate that Tait ever brought these requests to the trial
court’s attention or requested a ruling on them. See JD Shelton, 2019 WL 2498682,
5
at *2; Pedroza, 555 S.W.3d at 612. Accordingly, Tait has not preserved this complaint
for review. See Tex. R. App. P. 33.1(a)(1)(A); Bushell, 803 S.W.2d at 712.
Even if Tait had preserved this complaint, we would still overrule it because
Tait does not have a right to appointed counsel. The right to counsel in a criminal
proceeding has long been recognized as a constitutional right. See Gideon v. Wainwright,
372 U.S. 335, 342–45, 83 S. Ct. 792, 795–97 (1963). The right to counsel in a civil
proceeding, however, is more limited and only “applicable when a deprivation of
liberty is possible.” Hilliard v. Holland, No. 2-03-287-CV, 2004 WL 2712159, at *2
(Tex. App.—Fort Worth Nov. 24, 2004, no pet.) (mem. op.); see Erazo v. Sanchez,
580 S.W.3d 768, 770 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (“There is no
general right to counsel in Texas in civil cases.”); Serrano v. Pellicano Bus. Park, L.L.C.,
No. 08-16-00327-CV, 2017 WL 6506315, at *1 (Tex. App.—El Paso Dec. 20, 2017,
no pet.) (mem. op.) (“The Sixth Amendment’s right to counsel does not apply to civil
cases.”); In re J.A.G., 18 S.W.3d 772, 774 (Tex. App.—San Antonio 2000, no pet.)
(holding appellant not entitled to counsel when incarceration was not potential result
of proceeding). Here, Tait’s lawsuit is a personal injury action in which he seeks
money damages; there is nothing in the record to indicate that deprivation of liberty is
a possible consequence of Tait’s proceeding. Accordingly, Tait is not entitled to court
appointed counsel. See Hilliard, 2004 WL 2712159, at *2 (holding that because
“deprivation of liberty was not a possibility for Hilliard . . . he was not entitled to
court appointed counsel”).
6
While there is no general entitlement to counsel in a civil case, under
Government Code Section 24.016, a district judge has the discretion to appoint
counsel for an indigent party in a civil case if the party “makes an affidavit that he is
too poor to employ counsel to attend to the cause.” Tex. Gov’t Code Ann. § 24.016.
A court does not abuse its discretion by refusing to appoint such counsel to an
indigent party unless the case is “exceptional” and “the public and private interests at
stake are such that the administration of justice may best be served by appointing a
lawyer to represent an indigent civil litigant.” Travelers Indem. Co. of Conn. v. Mayfield,
923 S.W.2d 590, 594 (Tex. 1996); see Serrano, 2017 WL 6506315, at *1. As the Texas
Supreme Court has explained, circumstances that could be deemed “exceptional” are
“by definition rare and unusual,” such that they defy identification by a generalized
rule. Gibson v. Tolbert, 102 S.W.3d 710, 713 (Tex. 2003).
Here, assuming that Tait had submitted the requisite affidavit stating that he is
too poor to employ counsel to attend to his case,7 see Tex. Gov’t Code Ann. § 24.016,
Tait has offered no argument or proof that this case is exceptional; thus, the trial
7
The record reflects that Tait signed, under the penalty of perjury, a “Statement
of Inability to Afford Payment of Court Costs or an Appeal Bond” in which he
indicated that he could not afford to pay court costs in this proceeding. Because we
will hold that Tait has not established that this proceeding is an “exceptional”
proceeding, we need not decide whether Tait’s “Statement of Inability to Afford
Payment of Court Costs or an Appeal Bond” constitutes the requisite affidavit under
Section 24.016. See Tex. R. App. P. 47.1.
7
court did not abuse its discretion.8 See Hudson v. Dep’t of Crim. Just.-Institutional Div.,
No. 14-98-00793-CV, 2000 WL 1158462, at *2 (Tex. App.—Houston [14th Dist.]
Aug. 17, 2000, pet. denied) (op. on reh’g) (holding that trial court did not abuse its
discretion by failing to appoint counsel to indigent civil litigant who complained that
his medications slowed his mental capabilities where nothing in the record showed
that litigant was mentally incompetent or that his medications rendered him mentally
incompetent). We overrule Tait’s first issue.
B. Tait’s Second Issue
In what we construe as his second issue, Tait argues that the trial court “should
have protected his Civil Rights when he was obviously mentally floundering at
hearings.”
8
Although Tait complains generally that his alleged sleep deprivation impacted
his ability to present his case, the record contains no evidence in support of that
allegation. While Tait attached to his appellate brief an unauthenticated letter
purporting to be from his psychiatrist that explained that Tait had been taking
psychotropic medications and suffered from sleep deprivation, we cannot consider
this letter because it was not included in the record on appeal. See, e.g., Robb v. Horizon
Cmtys. Improvement Ass’n, Inc., 417 S.W.3d 585, 589 (Tex. App.—El Paso 2013, no pet.)
(“The attachment of documents as exhibits or appendices to briefs is not formal
inclusion in the record on appeal and, therefore, the documents cannot be
considered.”); Jones v. Warren, No. 02-12-00154-CV, 2013 WL 4679731, at *2 (Tex.
App.—Fort Worth Aug. 29, 2013, no pet.) (mem. op.) (declining to consider
documents attached to appellant’s notice of appeal and brief that were not part of the
record in the trial court); Reeve v. Citibank (S.D.) N.A., No. 2-04-152-CV, 2005 WL
554791, at *2 (Tex. App.—Fort Worth Mar. 10, 2005, no pet.) (per curiam) (mem.
op.) (“But the documents attached to appellee’s brief are not included in the appellate
record; thus, we cannot consider them.”).
8
A pro se litigant is held to the same standards as a licensed attorney and must
comply with all applicable rules of procedure, including appellate rules setting forth
the requirements for appellate briefs.9 Robb, 417 S.W.3d at 590. Were this not so, pro
se litigants would be given an unfair advantage over parties represented by counsel.
Id. Of relevance to this appeal, an appellant’s brief must, among other things,
“contain a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record.” Tex. R. App. P. 38.1(i). Here, Tait’s brief
does not contain any citations to the record to support his second issue,10 nor does it
contain any argument or citation to authority through which we might review this
issue. Accordingly, based on these briefing deficiencies, we hold that Tait has waived
his second issue. See Tex. R. App. P. 38.1(i); $60,427.11 U.S. Currency v. State, No. 02-
18-00165-CV, 2019 WL 3024475, at *5 (Tex. App.—Fort Worth July 11, 2019, no
pet.) (mem. op.) (overruling one of appellant’s issues for inadequate briefing where he
did not cite any authority or offer any argument in support of his complaint).
Even if we were to set aside Tait’s briefing deficiencies with respect to his
second issue, we must still overrule it because Tait has not preserved his complaint
9
In the early stages of Tait’s lawsuit, the trial court sent him a letter cautioning
that if he wished to proceed pro se, he would “be required to know and comply with
the Texas Rules of Civil Procedure and Evidence.”
We note that no reporter’s record was filed in this appeal; thus, we have
10
nothing to review with respect to Tait’s complaint that “he was obviously mentally
floundering at hearings.”
9
relating to this issue. As stated above, to preserve a complaint for appellate review, a
party must present to the trial court a timely request, objection, or motion that states
the specific grounds for the desired ruling, if not apparent from the request’s,
objection’s, or motion’s context. Tex. R. App. P. 33.1(a)(1)(A). If a party fails to do
this, error is not preserved. Bushell, 803 S.W.2d at 712. Here, there is no indication
that Tait ever presented to the trial court a timely request, objection, or motion
relating to this complaint, nor is there any indication that the trial court ever ruled on
this complaint. See Tex. R. App. P. 33.1(a)(1)(A), (a)(2)(A); Lenz v. Lenz, 79 S.W.3d 10,
13 (Tex. 2002) (requiring a party to secure a ruling on a motion to preserve error).
Thus, Tait has not preserved his complaint relating to his second issue for review. See
Tex. R. App. P. 33.1(a)(1)(A); Bushell, 803 S.W.2d at 712. We overrule Tait’s second
issue.
C. Tait’s Third Issue
In what we construe as his third issue, Tait argues that the trial court abused its
discretion by failing to grant his motion for continuance filed two days before the
hearing on Pepsi’s and Dr Pepper’s respective motions for summary judgment.
Once again, we turn to preservation. To preserve a complaint on appeal
concerning a trial court’s denial of a motion for continuance, the record must
demonstrate that the party presented the motion to the trial court. Smith v. El Paso
Veterans Transitional Living Ctr., 556 S.W.3d 361, 362 (Tex. App.—El Paso 2018, no
pet.) (citing Tex. R. App. P. 33.1(a)). A party does not meet this burden by merely
10
filing a motion for continuance with the trial court clerk. Id. Further, the record must
demonstrate that the trial court denied the motion or that it refused to rule on the
motion and the complaining party objected to the refusal to rule. Id. Here, the record
does not demonstrate that Tait presented his motion for continuance to the trial
court, nor does it show that the trial court denied the motion or refused to rule on the
motion and that Tait objected to such a refusal to rule.11 We thus conclude that Tait
has failed to preserve this issue for review. See id. (holding that appellant failed to
preserve complaint regarding motion for continuance where the record contained no
indication he had presented the motion to the trial court or that the trial court had
denied the motion as alleged).
Even if Tait had preserved his motion for continuance, the trial court did not
abuse its discretion by denying it. Texas Rule of Civil Procedure 251 provides that no
continuance shall “be granted except for sufficient cause supported by affidavit, or by
consent of the parties, or by operation of law.” Tex. R. Civ. P. 251. A trial court
therefore generally does not abuse its discretion by denying a motion for continuance
that is unsupported by an affidavit. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986);
Frequent Flyer Depot, Inc. v. Am. Airlines, Inc., 281 S.W.3d 215, 226 (Tex. App.—Fort
Worth 2009, pet. denied). Here, Tait’s motion for continuance was not supported by
an affidavit, and there is nothing in the record indicating that Pepsi or Dr Pepper
11
In his brief—without citing to anything in the record—Tait simply states that
his motion for continuance “was denied or ignored.”
11
consented to the continuance. Thus, because Tait did not comply with Rule 251,
even if he had preserved his complaint, he has not demonstrated that the trial court
abused its discretion. See Tex. R. Civ. P. 251; Villegas, 711 S.W.2d at 626; Frequent Flyer
Depot, 281 S.W.3d at 226. We overrule Tait’s third issue.
IV. CONCLUSION
Having overruled Tait’s three issues, we affirm the trial court’s judgment.12
/s/ Dana Womack
Dana Womack
Justice
Delivered: March 2, 2023
12
During this appeal, Dr Pepper filed a motion to dismiss Tait’s appeal and
strike Tait’s amended brief due to the untimeliness of the brief and because of certain
pleading deficiencies contained in the brief. In light of our opinion and judgment
reached today, we need not rule on Dr Pepper’s motion.
12